1. By this appeal, the appellant (original complainant) has challenged judgment and order dated 29.06.2016 passed by the Court of Judicial Magistrate First Class, Seloo (trial Court) in Summary Criminal Case No.754 of 2012, whereby the respondent (original accused) has been acquitted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

2. The complainant came to the Court with a case that being a Multi State Co-operative Society, it had advanced loan of Rs.3,15,000/- to the respondent for 11 months carrying an interest @ 14.50 % P.A. In that regard, the respondent had pledged Tur Dal weighing 98.98 quintals in 101 bags with the appellant society, which was kept in the warehouse of the appellant.

3. According to the appellant, the respondent defaulted in repayment of the loan amount due to which the appellant was constrained to auction the aforesaid Tur Dal on 26.11.2011 at Seloo, from which an amount of Rs.3,07,170/- was recovered and it was adjusted towards the loan account of the respondent. According to the appellant, there was still an amount of Rs.1,09,609/- outstanding on the said loan account against the respondent, for which the appellant made attempts to pursue the respondent to repay the same. It was the case of the appellant that in order to repay the said outstanding amount, the respondent issued cheque bearing No. 222137 dated 9.2.2012 for an amount of Rs.1,09,609/-. But, on the said cheque being deposited, it was dishonoured for the reason of “insufficient funds”.

4. On receiving memo from the Bank dated 22.03.2012 about dishonor of the cheque for the said reason, the appellant issued notice to the respondent, to which there was no reply from the respondent. As a consequence, the appellant was constrained to file complaint before the trial Court bearing Summary Criminal Case No. 754 of 2012. This complaint was filed on behalf of the appellant by its authorized representative, one Rahul Deshpande. The said authorized representative also appeared as a witness in support of the case of the appellant before the trial Court. He was cross-examined on behalf of the appellant.

5. The appellant placed on record documentary evidence in the form of copy of resolution authorizing the said Rahul Deshpande to represent the appellant before the trial Court (Exh.28), the disputed cheque (Exh.29), the memo issued by the petitioner (Exh.31), notice dated 19.04.2012 issued by the appellant (Exh.32) along with acknowledgment (Exh.33), loan account statement of the respondent (Exh.35) and document to show that the respondent had agreed to auction of pledged Tur Dal in case of default in repayment of loan. The said authorized representative appeared as witness for the appellant. On the basis of such oral and documentary evidence on record, the appellant claimed that the respondent was liable to be punished for offence punishable under Section 138 of the aforesaid Act.

6. The respondent did not send any reply to the notice sent by the appellant after dishonor of cheque. No evidence was led on behalf of the respondent in support of his defence. The respondent essentially relied upon cross-examination of the witness who appeared on behalf of the appellant. The defence of the respondent was that the disputed cheque had been issued by way of security when the loan was disbursed. An objection was also raised in respect of the authority of the said Rahul Deshpande to file the complaint on behalf of the appellant and to pursue the case before the trial Court.

7. By the impugned judgment and order, the trial Court held that the appellant had failed to demonstrate proper authorization in favour of the said Rahul Deshpande and it was held that the complaint itself was liable to be rejected on the ground that a legally authorized person had not filed the complaint on behalf of the appellant. On the question of the cheque being issued for discharge of legal debt or liability, it was held that the appellant had indu